Licence Appeal Tribunal File Number: 25-001541/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Elvis Osorno Zapata
Applicant
and
Primmum Insurance Company
Respondent
DECISION
ADJUDICATOR:
Bernard Trottier
APPEARANCES:
For the Applicant:
Mackenzie Matheson, Counsel
For the Respondent:
Damian Di Biase, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Elvis Osorno Zapata, the applicant, was involved in an automobile accident on February 17, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Primmum Insurance Company, the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
Is the applicant entitled to $1,094.83 for physiotherapy services, proposed by Lifemark Physiotherapy Westmount in a treatment plan/OCF-18 dated March 17, 2023?
Is the applicant entitled to $674.95 for medical expenses, submitted on a claim form/OCF-6 dated March 17, 2025?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are not predominantly minor and are not subject to the MIG limit.
4The applicant is entitled to $1,094.83 for the physiotherapy services proposed in the disputed treatment plan.
5The applicant is entitled to $674.95 for the medical expenses submitted on the disputed claim form.
6The applicant is entitled to interest on overdue payment of benefits, pursuant to s. 51 of the Schedule.
ANALYSIS
The Minor Injury Guideline
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
8An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
9The treatment plan in dispute indicated that the applicant’s impairments were predominantly a minor injury, but the condition required funding outside of the MIG limit to achieve maximal medical recovery. The applicant submitted that $3,170.08 has been paid in medical and rehabilitation benefits to date.
10The parties dispute whether the applicant’s spine impairments place him outside of the MIG. The parties also dispute whether the applicant suffered from chronic pain with functional impairment that would warrant removal from the MIG, and whether the proposed treatment plan and claimed expenses are reasonable and necessary.
The applicant’s spine impairments place him outside of the MIG
11The accident occurred on February 17, 2022, when the applicant was 43 years old. On March 1, 2022, the applicant visited his family physician, Dr. Monika Sharma, for neck pain and low back pain attributed to the accident, and he was prescribed massage therapy, physiotherapy and pain medication.
12The applicant submits that he suffered degenerative changes to his spine as a result of the accident. He directed me to the clinical notes and records (“CNRs”) of Dr. Sharma, on August 2, 2022, after several months of physiotherapy, where he reported that the therapy was helping, but that there was not much improvement. On that date, Dr. Sharma ordered x-rays that indicated unremarkable results.
13On October 10, 2023, Dr. Sharma ordered further x-rays that indicated a mild narrowing of the L5-S1 disc and minimal degenerative changes of the L4 vertebral endplates.
14On March 23, 2025, Dr. Sharma received a magnetic resonance imaging (“MRI”) report of the applicant’s spine. Dr. Sharma noted that the MRI indicated disc bulges, mild bilateral facet arthropathy on multiple levels, a superimposed 6 mm central annular tear, mild bilateral neural foraminal stenosis, slight contact with the traversing right L5 nerve roots, and moderate loss of disc height.
15The applicant argues that the injuries noted in the MRI report are caused by the accident and are not considered minor injuries under s. 3(1) of the Schedule. He argues that he is therefore entitled to funding outside of the MIG limit.
16The respondent relies on the insurer’s examination report of Dr. David Berbrayer, physiatrist, dated June 20, 2023, to argue that the applicant suffered minor musculoskeletal injuries from the accident, including myofascial pain in the cervical spine, mechanical low back pain without neurological deficits and post-traumatic headaches. The respondent submits, further, that on October 17, 2023, Dr. Sharma’s CNRs indicated that the applicant’s lumbar spine alignment was maintained with no compression fracture, with mild degenerative changes and no effusion. The respondent argues that Dr. Berbrayer’s report and Dr. Sharma’s CNRs, about 16 months and 20 months post-accident, respectively, indicate that the applicant did not suffer degenerative changes to his spine because of the accident.
17The respondent acknowledges that the applicant was diagnosed with mild to moderate disc bulges on March 23, 2025, but that these were noted in the MRI report more than three years post-accident. The respondent argues that the applicant has not demonstrated that the disc bulges were caused by the accident as opposed to non-accident-related degenerative disc disease (“DDD”). The respondent relies on the further IE report of Dr. Mohammed Abdul-Wahab Khan, physiatrist, dated August 12, 2025, to argue that the applicant suffered sprain/strain injuries to his spine in the accident, that the MRI showed mild-to-moderate degenerative changes, and that the MRI findings would not prevent the natural healing of the applicant’s accident-related soft-tissue injuries.
18I find that, for about three years post-accident, the medical evidence indicated that the applicant suffered injuries that would be classified as “minor” under s. 3(1) of the Schedule. I find that the evidence of disc bulges, annular tear, stenosis and nerve root contact, as found in the MRI report of March 23, 2025, are not “minor” under s. 3(1). The question for me to consider is whether the non-minor impairments were caused by the accident.
19The appropriate test to determine causation is the “but for” test, as set out by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (“Sabadash”). To determine causation due to the accident, the applicant must show that he would not have suffered his spine injuries “but for” the accident, and that the cause that meets that test need not be the major cause.
20The applicant submits that he did not have pre-existing back pain that interfered with his daily activities, including work and recreation, but that after the accident, his back pain persisted and became progressively worse, as evidenced by his pain complaints and diagnostic imaging. The applicant argues, citing A. A. v. Technology Insurance Company Inc., 2020 CanLII 12719 (ON LAT) (“A.A.”), that the Tribunal can infer that the intervening act of the accident was responsible for the applicant’s non-minor impairments.
21The respondent argues that the applicant has not produced an opinion from any physician that the spine conditions noted in the MRI report were caused by the accident as opposed to non-accident-related DDD. The respondent argues, further, that it is not enough for the applicant to argue that the lack of pre-accident back pain is sufficient evidence of a causal link between the accident and his current pain.
22I find that, while the applicant has not produced a physician opinion that his MRI-indicated spine conditions were due to the accident, the IE report of Dr. Khan is equivocal on the cause of applicant’s spine conditions. I find that Dr. Khan opines that the applicant’s MRI findings will not prevent healing of his accident-related soft-tissue injuries, but that Dr. Kahn is silent on whether the disc degeneration is caused (or not) by the accident. I find that Dr. Khan makes comments on whether the applicant had pre-existing injuries that were exacerbated by the accident, even though the applicant did not make claims of a pre-existing injury. For this reason, I assign little weight to the respondent’s argument, via Dr. Khan, that the applicant’s 2025 spine impairments were unrelated to the accident.
23I find that the applicant has demonstrated that the applicant’s disc injuries started with the accident, did not improve with physiotherapy and medication, and degenerated over time to the conditions noted (and possibly only first detected) in the MRI. I infer from the evidence before me that, on a balance of probabilities, the accident is at least partly responsible for the applicant’s spine injuries over time, based on the test set out in Sabadash. In other words, but for the accident, the applicant would not suffer the disc bulges, annular tear and other spine injuries that can now be classified as a non-minor injury.
24Because the applicant’s spine impairments are not minor, as defined by s. 3(1) of the Schedule, and because I find that they would not have occurred but for the accident, I find that the applicant’s spine impairments place him outside of the MIG.
The applicant’s chronic pain places him outside of the MIG
25The applicant submits that a formal diagnosis of chronic pain is not required for removal from the MIG, provided that the pain is present beyond three to six months post-accident. The applicant argues, citing A.A., that the factors to be considered in assessing whether the applicant’s chronic pain is not a minor injury are:
Whether the applicant suffers severe and constant pain – more than simple ongoing or recurrent, intermittent pain;
Whether the pain has persisted well beyond the normal healing times for the injuries sustained;
Whether the pain is not a clinically associated sequala to minor injuries; and
Whether the pain has caused functional impairment and disability.
26The applicant argues that, because he suffers from chronic pain with functional impairment, he is entitled to funding for treatment outside of the MIG.
27The applicant submits that the CNRs and documents of the following practitioners support his claim that he suffered ongoing, persistent neck and lower back pain:
Dr. Sharma, from March 7, 2022 to December 4, 2023;
Miranda Umeri, physiotherapist, from March 8, 2022 to March 16, 2023;
Amanda Sutton, massage therapist, from April 6, 2022 to March 17, 2023;
Dr. Berbrayer, in his report dated June 20, 2023, where he noted tenderness in the lumbar region and inability to work part-time as a bartender;
Dr. Sharma, Disability Certificate dated May 16, 2024, that indicated that the applicant continued to experience lower back and neck pain more than two years post-accident, and that he continued to be unable to perform housekeeping and home maintenance activities that he normally performed before the accident;
Dr. Nobel Malhotra, chiropractor, from October 29, 2024 to February 20, 2025;
The MRI report to Dr. Sharma, dated March 23, 2025; and
Dr. Khan, in his report dated August 12, 2025, where he noted limited range of motion in the neck, shoulders and back, as well as middle and lower back pain.
28The applicant submits that he has relied on prescription medication to manage his pain, as evidenced in his prescription history and the CNRs of Dr. Sharma. The applicant submits that he has engaged in physiotherapy, massage therapy and chiropractic treatment to provide pain relief to allow him to continue with many of his daily activities, including his full-time work as an accountant, but he argues that these treatments provide only temporary relief from his pain that has become chronic.
29The applicant submits, further, that he suffers from functional impairment as a result of his pain complaints, including stopping his part-time employment as a bartender, requiring his son to take over repetitive aspects of housekeeping and home maintenance, and withdrawing from participating in sports and other recreation activities, as documented in the IE reports of Dr. Berbrayer and Dr. Khan.
30The respondent did not dispute the factors, as set out in A.A., to be considered in assessing whether the applicant’s chronic pain is not a minor injury. The respondent submits that the applicant did not adhere consistently to the advice of his treatment providers, by failing to take his pain medication and missing appointments with Dr. Sharma for further treatment and medical imaging. The respondent argues that his inconsistent follow-up with his physician undermines the applicant’s claim that he is reliant on his health care providers to manage pain. The respondent argues, further, that the applicant does not have any expert reports or evidence opining that he suffers from chronic pain.
31The respondent argues that the applicant does not suffer from functional impairment due to pain for the following reasons:
He returned to his pre-accident employment as an accountant one week after the accident;
He reported to Ms. Umeri that he was able to drive his vehicle and engage in his usual recreational activities only one month after the accident;
He reported to Dr. Khan that he was independent in self-care and housekeeping tasks;
32For these reasons, the respondent argues that the applicant does not meet the diagnosis for chronic pain with functional impairment, because he has not provided sufficient evidence of detrimental impact on his normal function.
33In his reply submissions, the applicant argues that a strict adherence to treatment recommendation and consistent treatment are not one of the factors in assessing whether an injured person suffers from chronic pain, citing Dhillon v Aviva Insurance Company, 2022 CanLII 87731 (ON LAT) (“Dhillon”). The applicant argues that consistent self-reporting combined with functional limitations is enough to establish chronic pain warranting removal from the MIG.
34I find that the applicant has demonstrated, on a balance of probabilities, that he suffered persistent pain in his neck and lower back that endured well beyond the normal healing times for the injuries sustained. I find that the CNRs of Dr. Sharma and his physical therapy providers, from 2022 to 2025, provide sufficient evidence that the applicant suffered pain that endured for several years. I find, also, that an expert report from the applicant is not a requirement to determine whether an insured suffers from chronic pain, as described in both A.A. and Dhillon.
35I find that the pain is not a clinically associated sequela to minor injuries, as I have found that the applicant’s spine injuries had developed into injuries that are defined as non-minor under s. 3(1) of the Schedule.
36I find that the applicant demonstrated a reliance on treatment providers and pain medications to manage that pain, despite the respondent’s submission that he had missed certain appointments. While I am not bound by it, I agree with the adjudicator in Dhillon that gaps in treatment and/or missed appointments do not negate the applicant’s ongoing pain complaints to his treatment providers.
37Lastly, I find that the applicant has demonstrated that he suffered functional impairments as a result of his pain. I accept the applicant’s submissions that he resigned from his part-time work as a bartender because he could no longer perform the bending and lifting associated with that work. I accept his submissions, also, that he was no longer able to participate in the sports and recreational activities that he undertook before the accident, because of pain. While he returned to work as an accountant and was independent in driving and self-care, I find that these activities do not preclude the applicant from claiming he suffered from functional impairment due to pain.
38I assign little weight to the respondent’s claim that the applicant reported to Ms. Umeri that he was able to engage in all of his pre-accident recreation activities with some pain one month after the accident, because in those same CNRs, two months later, the applicant indicated that he could hardly do any recreation activities because of pain.
39For the reasons above, I find on a balance of probabilities that the applicant suffered from chronic pain with functional impairment, warranting removal from the MIG.
The applicant is entitled to funding for the disputed treatment plan
40I find that the applicant’s injuries, as a result of the accident, are not minor as defined by s. 3(1) of the Schedule. I find, also, that the applicant suffered from chronic pain with functional impairment. Therefore, funding for the applicant’s treatment is not restricted to the MIG limit.
41Because the goals of the proposed physiotherapy treatment plan are pain reduction and restoration of function, I find the treatment plan is reasonable and necessary, and therefore payable.
The applicant is entitled to funding for the disputed expense claim
42The disputed expense claim was for portions of physiotherapy, massage therapy and chiropractic services not covered by the applicant’s collateral benefits ($383.93), an administrative fee from Dr. Sharma for insurance forms ($35.00), portions of prescription pain medication not covered by collateral benefits ($36.31), over-the-counter (“OTC”) pain medication and topical pain patches/creams ($213.71) and parking for medical appointments ($6.00).
43Under s. 38(2) of the Schedule, an insurer is not liable to pay an expense in respect of a medical benefit that was incurred before the insured submits a treatment plan that is completed and signed by a regulated health professional.
44Section 38(2)(c)(i) of the Schedule provides an exception for drugs that are reasonable and necessary, and prescribed by a regulated health professional.
45The respondent’s denial letter for the expense claim, on March 18, 2025, tells the applicant that all of the items on the claim were denied because his injuries fell within the MIG and, because $3,500 had already been approved for treatment within the MIG, no further benefits were payable. The denial letter made no other reference to medical and other reasons for the denial, and it did not invite the applicant to submit OCF-18s for the claimed physiotherapy, massage therapy and chiropractic services.
46I find that the denied portions of physiotherapy, massage therapy and chiropractic services are consistent with the applicant’s pain impairments which I have found are not restricted to the MIG limit. I find that, despite the restrictions under s. 38(2) on paying for these services in the absence of a treatment plan, the denial did not provide the applicant with a recourse for seeking reimbursement for these expenses via OCF-18s. For these reasons, I find that the claimed items for various physical therapy services are reasonable, necessary and payable.
47I find that the administrative fee from Dr. Sharma for completion of insurance forms is reasonable and necessary, as it would not have been incurred by the applicant but for the denial of treatment under the MIG. For this reason, I find it payable.
48I find that under s. 38(2)(c)(i), the claimed items for portions of prescription pain medication not covered by collateral benefits are reasonable, necessary and payable.
49I find that the expenses for OTC pain medications are consistent with the applicant’s pain impairments, and that they were reasonably and necessarily incurred by the applicant. They were denied because of the MIG. Despite the exception under s. 38(2)(c)(i) applying only to prescription medication, I find that these expenses were reasonable, necessary and payable, because the MIG denial would have caused the applicant to seek recourse to OTC medications when funding for prescription medications was denied.
50Lastly, I find that the denied claim for parking for two medical appointments is reasonable, necessary and payable, because these expenses were incurred as part of his treatment and/or assessments for his impairments that are no longer subject to the MIG.
Interest
51Under s. 51 of the Schedule, an insurer shall pay interest on an overdue payment of a benefit, from the date the amount became overdue until it is paid, at a rate of 1% per month, compounded monthly. Since I have found that the applicant’s injuries are not predominantly minor, and the disputed treatment plan and medical expenses are reasonable and necessary, the applicant is entitled to interested in accordance with s. 51 of the Schedule.
ORDER
52For the reasons above, I find that:
The applicant’s injuries are not minor as defined by the Schedule;
The applicant is entitled to the disputed treatment plan;
The applicant is entitled to the medical expenses submitted on the disputed claim form; and
This application is entitled to interest.
Released: May 5, 2026
Bernard Trottier
Adjudicator